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Shift discretion on mandatory minimums

Anne-Marie McElroy

Speaker's Corner

September 10, 2018

When the Liberal government came into power in 2015, there was a feeling among criminal lawyers of a shift in philosophy toward criminal justice. Under Stephen Harper, we saw a spate of reforms, usually aimed at reassuring Canadians that they would be safe from the “criminals.” The sunny ways of Prime Minister Justin Trudeau’s government would replace the crime and punishment regime with a more sensible and evidence-based approach. Minister of Justice Jody Wilson-Raybould announced that the government would include examining mandatory minimum sentences, many of which were introduced under Harper’s reign. In a way, the mandatory minimums were low-hanging fruit: Many had been deemed unconstitutional and struck down, and there was growing evidence that such sentences did not ultimately deter crime. These changes have yet to come from the House of Commons. Instead, there is movement afoot from the Senate and from a bill proposed by Senator Kim Pate.

While it may seem trite, it bears emphasizing that sentencing is a crucial part of the criminal justice system. A judge is tasked to consider not only the circumstances of an offence but also the specific background of the accused person and the systemic factors that may have contributed to them coming before the courts. With jurisprudence to guide the appropriate ranges of sentencing, the judge weighs the aggravating and mitigating factors to come to a just sanction. However, when a mandatory minimum sentence applies, the judge does not have the same level of discretion. Their hands are bound by a sentence that has been determined by Parliament as opposed to their own analysis.

In taking discretion from judges, mandatory minimum sentences also serve to shift power to the prosecutors and defence lawyers, who may negotiate different counts or offences in order to avoid a punitive mandatory sentence.

The difficulty with mandatory minimums is that the one-size-fits-all approach often captures those who simply do not fit. A set of circumstances of a factual background means that the mandatory minimum sentence would be disproportionate or unjust. These scenarios can be costly on a number of fronts. First, a mandatory minimum sentence can incentivize a person’s desire to either go to trial to avoid that penalty, where they might otherwise plead guilty, or plead to a lesser offence. Otherwise, an individual might challenge the constitutionality of the sentence, arguing that it does not comply with rights enshrined in the Charter and, therefore, should be struck down.

The reasonable hypotheticals are often not so far-fetched. Consider, for example, a young man who engages with a 14-year-old online but fails to take adequate steps to verify her age. Should this behaviour be punished by a year in jail for a man with no criminal record? These were the facts in the case of R. v. Morrison,where the Ontario Court of Appeal confirmed that the one-year mandatory minimum for child luring was grossly disproportionate and, therefore, unconstitutional. Or consider a naïve 24-year-old man with no criminal record who posts a photo of two girls who he believed to be 18 years old on an escort ad. This scenario was considered recently in the Ottawa Superior Court by Justice Colin McKinnon in R. v. Joseph. Here, the judge found that the one-year mandatory minimum sentences for both receiving a benefit from prostitution from a person under 18 years of age and making and possessing child pornography were unconstitutional. While these are individual examples, mandatory minimum sentences can also disproportionately affect those from marginalized communities that might most benefit from a more rehabilitative sentence.

Bill S-251 proposes to amend the Criminal Code to give the court the discretion to vary a sentence where a mandatory minimum applies, as well as to decline to make a mandatory prohibition order, so long as it is just and reasonable to do so. Should this be the case, the judge must provide written reasons. The bill falls in line with the sentencing principle of restraint, insofar as it demands that the court consider all available options prior to imposing a minimum punishment of imprisonment or parole ineligibility. The language proposed echoes the wording in s. 718(2)(e) of the Criminal Code, which requires a judge who is sentencing an Indigenous offender to consider all other available sanctions before imposing a custodial sentence.

This wording may well have been intentional. In her speech to the Senate on May 31, Pate referenced the government’s obligations to implement the calls to action of the Truth and Reconciliation Commission, particularly that of number 32, which calls for the federal government to amend the Criminal Code to allow for trial judges to depart from mandatory minimum sentences and restrictions on the use of conditional sentences. Indeed, mandatory minimum sentences contribute to the over-representation of Indigenous people in Canada’s jails where more community-based, rehabilitative consequences are not available as a sentence.

The bill essentially acts as an escape valve for judges who are faced with a situation where the circumstances of a case of background of an accused person are such that the mandatory minimum sentence would be unjust. In this case, they can bypass a constitutional challenge or other litigation and deliver a sentence that would be fair. And, of course, if there is a question as to whether the sentence is outside of the appropriate range, then the decision can be reviewed by an appellate court.

So, while we wait for meaningful criminal justice reform from the Liberal government, Pate’s bill proposes to provide an important change to our system that could dramatically impact the lives of many people who find themselves before the courts. In shifting discretion back to judges who are best equipped to carefully examine the circumstances of an individual, the courts will be in a better position to impose sentences that are appropriate, just and fair.

Anne-Marie McElroy is a sole practitioner, criminal defence lawyer and blogger based in Ottawa.